Citation Nr: 0806326
Decision Date: 02/26/08 Archive Date: 03/03/08
DOCKET NO. 05-23 081 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Anchorage,
Alaska
THE ISSUES
1. Entitlement to an evaluation in excess of 30 percent for
asthma, on appeal from the initial grant of service
connection.
2. Entitlement to a compensable evaluation for sinusitis, on
appeal from the initial grant of service connection.
3. Entitlement to a compensable evaluation for
chondromalacia of the left knee, on appeal from the initial
grant of service connection.
4. Entitlement to a compensable evaluation for chronic low
back pain, on appeal from the initial grant of service
connection.
5. Entitlement to a compensable evaluation for uterine
fibroids, on appeal from the initial grant of service
connection.
6. Entitlement to a compensable evaluation for acne with
keloidal papules on scalp, earlobes and face, on appeal from
the initial grant of service connection.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J.R. Bryant, Counsel
INTRODUCTION
The veteran had active service from January 1984 to January
2004.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a March 2004 rating decision by the above
Department of Veterans Affairs (VA) Regional Office (RO).
The issue of entitlement to a compensable evaluation for
uterine fibroids is addressed in the Remand portion of the
decision below and is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. The veteran's asthma is manifested by symptoms requiring
intermittent inhalational or oral bronchodilator therapy, but
does not show FEV-1/FVC of 40 to 55 percent, monthly visits
to a physician for required care of exacerbations, or
intermittent (at least three per year) courses of systemic
corticosteroids.
2. The veteran's sinusitis has been confirmed by x-ray
studies, but has not resulted in one or two incapacitating
episodes per year requiring prolonged antibiotic treatment or
three to six non-incapacitating episodes characterized by
headaches, pain, and purulent discharge or crusting.
3. The veteran's left knee disability has been manifested by
chondromalacia with pain on activity and full range of
motion. Subluxation and lateral instability have not been
medically demonstrated. There is no X-ray evidence of
arthritis.
4. The veteran's thoracolumbar forward flexion is greater
than 85 degrees. Her combined range of motion in her
thoracolumbar spine is greater than 235 degrees. She does
not have muscle spasm, guarding, localized tenderness, or a
vertebral body fracture.
5. The veteran's acne does not result in deep inflamed
nodules and pus-filled cysts; does not result in any
characteristic of disfigurement or deep or unstable scars,
scars that are painful upon examination or cause limitation
of motion, or scars covering an area of 144 square inches.
CONCLUSIONS OF LAW
1. The criteria for an initial evaluation in excess of 30
percent for asthma are not met. 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code
(DC) 6602 (2007).
2. The criteria for an initial compensable evaluation for
sinusitis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 2002); 38 C.F.R. § 4.97, DC 6513 (2007).
3. The criteria for an initial compensable evaluation for
chondromalacia of the left knee are not met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a,
DC 5260 (2007).
4. The criteria for an initial compensable evaluation for
chronic low back pain are not met. 38 U.S.C.A. §§ 1155,
5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.71a, DC 5237
(2007).
5. The criteria for an initial compensable evaluation for
acne with keloidal papules of the scalp, earlobes and face
are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002); 38 C.F.R. § 4.118, DC 7828 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Pertinent Law and Regulations
Disability evaluations are determined by comparing a
veteran's present symptomatology with the criteria set forth
in the VA Schedule for Rating Disabilities, which is based
upon average impairment in earning capacity. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. Part 4 (2007). When a question
arises as to which of two ratings applies under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7 (2007). After careful consideration of the
evidence, any reasonable doubt is resolved in favor of the
veteran. 38 C.F.R. § 4.3 (2007).
The veteran's entire history is considered when making
disability evaluations. 38 C.F.R. § 4.1; Schafrath v.
Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of
the recorded history of a disability is necessary in order to
make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the
regulations do not give past medical reports precedence over
current findings where such current findings are adequate and
relevant to the rating issue. See Francisco v. Brown, 7 Vet.
App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999).
However, where the question for consideration is propriety of
the initial evaluation assigned, evaluation of the medical
evidence since the grant of service connection and
consideration of the appropriateness of "staged rating" is
required. See Fenderson v. West, 12 Vet. App. 119 (1999).
In every instance where the rating schedule does not provide
a 0 percent rating for a DC, a 0 percent rating shall be
assigned when the requirements for a compensable rating are
not met. 38 C.F.R. § 4.31 (2007).
By a rating decision in March 2004, the RO granted service
connection for asthma, sinusitis, left knee chondromalacia,
chronic low back pain and acne. The veteran has disagreed
with the initial evaluations assigned for each.
1. asthma
The veteran's asthma has been evaluated as 30 percent
disabling under DC 6602. This diagnostic code rates the
severity of pulmonary disorders based primarily on objective
numerical results of pulmonary function testing (PFT).
Asthma is evaluated using the following tests: (1) Forced
Expiratory Volume in one second (FEV-1) and (2) the ratio of
FEV-1 to Forced Vital Capacity (FEV-1/FVC). The Board notes
that, under VA's rating procedures, the post-bronchodilator
value provides the ideal estimate of the veteran's best
possible functioning and assures consistent evaluations. See
61 Fed. Reg. 46,720 (Sept. 5, 1996).
Under DC 6602, a 30 percent evaluation is contemplated for
FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70-
percent predicted, or; daily inhalational or oral
bronchodilator therapy, or; inhalational anti-inflammatory
medication. Assignment of a 60 percent evaluation is
warranted where there is FEV-1 of 40 to 55-percent predicted,
or; FEV-1/FVC of 40 to 55 percent, or; at least monthly
visits to a physician for required care of exacerbations, or;
intermittent (at least three per year) courses of systemic
(oral or parenteral) corticosteroids. For assignment of a
100 percent evaluation, there must be a showing of FEV-1 of
less than 40 percent of predicted value, or; FEV-1/FVC of
less than 40 percent, or; more than one attack per week with
episodes of respiratory failure, or; requires daily use of
systemic (oral or parenteral) high dose corticosteroids or
immuno-suppressive medications. 38 C.F.R. § 4.97 (2007).
The pertinent evidence of record includes an October 2003 VA
examination report. At that time the veteran stated that her
first asthma attack occurred in the late 1980s while running.
She was diagnosed with exercise-induced asthma and given
albuterol to use prior to exercise, which helped. She had
another asthma attack in 1990 and was treated in the
emergency room with albuterol. She had no further attacks
until 2001, triggered by trash burning and pollen. Currently
she no longer has exercise-induced symptoms due to a change
in her exercise routine, and does not carry albuterol. On
examination her lungs were clear to auscultation, with no
wheezing and good air movement. The clinical impression was
chronic asthma, exercise-induced, requiring intermittent use
of rescue medicine. No daily steroid was needed.
During subsequent VA examination in August 2005 the examiner
noted that the veteran was on an albuterol metered-dose
inhaler but had not used this since 2001. PFT showed a mixed
obstructive and restrictive ventilatory defect. The FEV-1
was 52 percent predicted, which improved to 63 percent of
predicted after inhaled bronchodilators. The FEV-1 ratio was
80 percent. The diagnostic impression was moderate to
moderately severe, mixed obstructive and restrictive
ventilatory defect with evidence of significant improvement
after inhaled bronchodilators. The examiner noted that the
test suggested the veteran would benefit significantly from
an aggressive combination of inhaled corticosteroid and long-
acting beta agonists.
In this case, the assignment of a higher disability
evaluation for asthma is not warranted. The claims file does
not contain evidence of treatment or complaints of asthma
attacks indicative of increased or worsening disability. In
reaching this conclusion, significant weight is accorded to
the PFT values, which did not produce results of FEV-1 40 to
55 percent predicted or FEV-1/FVC 45 to 55 percent.
Likewise, the medical evidence does not establish that the
veteran requires monthly care for her asthma attacks or
steroidal medication. Rather she has not used an albuterol
inhaler since 2001 and none of the records pertain to
treatment for asthma or reflect evidence of exacerbations.
As the veteran confirmed at both of VA examinations, she had
not required emergency room treatment since the 1990s. In
addition, the medical evidence shows that her medications
consist primarily of albuterol which is not a systemic
corticosteroid. The criteria for a disability rating in
excess of 30 percent simply are not met.
A preponderance of the evidence is against the claim, and
there is no reasonable doubt to be resolved. 38 U.S.C.A.
§ 5107(b).
2. sinusitis
The veteran is currently assigned a noncompensable disability
evaluation for sinusitis under DC 6513.
Under DC 6513 a 10 percent evaluation for sinusitis is
warranted for one or two incapacitating episodes per year of
sinusitis requiring prolonged (lasting four to six weeks)
antibiotic treatment, or; three to six non-incapacitating
episodes per year of sinusitis characterized by headaches,
pain, and purulent discharge or crusting. A 30 percent
evaluation is warranted for three or more incapacitating
episodes per year of sinusitis requiring prolonged (lasting
four to six weeks) antibiotic treatment, or; more than six
non-incapacitating (episodes per year of sinusitis
characterized by headaches, pain, and purulent discharge or
crusting. 38 C.F.R. § 4.97 (2007).
Turning to the evidence of record, an October 2003 VA
examination report shows the veteran's sinusitis first
occurred in 1994. The symptoms included congestion,
postnasal drip, itchy throat, eye puffiness, and itchy/watery
eyes and were treated with decongestant and nasal spray. The
symptoms usually occurred twice a year, in the spring and
fall. However, since moving to Alaska in 1998 she has not
had problems with her sinuses or allergies.
During VA examination in August 2005, the veteran gave a
history of recurrent sinusitis with the last attack in
September 2004 treated with nasal spray and antibiotics. She
stated that she usually has sinusitis two to three times in
the winter and is treated with antibiotics once a year. On
examination her sinuses were nontender. Sinus X-rays showed
mild right maxillary sinusitis and ethmoid sinus mucosal
thickening.
Based upon the foregoing history and examination findings,
the record reflects the veteran's history of treatment for
recurrent sinusitis. The VA examination reports detail
various symptoms and complications, but there is no competent
medical evidence indicating that the veteran's sinusitis is
manifested by sufficient symptomatology to warrant a
compensable evaluation. Her symptoms have not been
characterized by headaches, pain, purulent discharge or
crusting. She does not experience episodes of incapacitating
symptoms and there is no medical evidence to suggest that she
requires bed rest or prolonged antibiotic therapy, lasting
four to six weeks.
The Board finds no other provision upon which to assign a
compensable rating. Under DC 6502, a maximum 10 percent
rating is warranted for traumatic deviation of the nasal
septum with 50 percent obstruction of the nasal passage on
both sides or complete obstruction on one side. 38 C.F.R. §
4.97 (2007). Also, the veteran does not contend, nor does
the objective medical evidence of record support a finding of
bacterial rhinitis (DC 6523) or granulomatous rhinitis (DC
6524). Id.
A preponderance of the evidence is against the claim, and
there is no reasonable doubt to be resolved. 38 U.S.C.A.
§ 5107(b).
3. left knee chondromalacia
Currently, the veteran's left knee chondromalacia is rated as
noncompensably disabling under DC 5260, for limitation of
flexion.
Under DC 5260 where flexion is limited to 60 degrees, a
noncompensable rating is provided; when flexion is limited to
45 degrees, 10 percent is assigned; when flexion is limited
to 30 degrees, a 20 percent rating is assigned; and when
flexion is limited to 15 degrees, a 30 percent rating is
assigned. 38 C.F.R. § 4.71a (2007).
Limitation of extension of the leg is rated noncompensable at
5 degrees, 10 percent at 10 degrees, 20 percent at 15
degrees, 30 percent at 20 degrees, 40 percent at 30 degrees,
and 50 percent at 45 degrees. 38 C.F.R. § 4.71a, DC 5261
(2007). See also 38 C.F.R. § 4.71, Plate II (2007), which
reflects that normal flexion and extension of a knee is from
0 to 140 degrees.
On VA examination in October 2003, the veteran gave a history
of chronic left knee pain, limping and swelling after
running. The symptoms would last 1 to 2 weeks and were
treated with heating pads and anti-inflammatories. X-rays
were negative. Currently she has pain with prolonged
walking, crawling or kneeling, which she treats with over-the
counter medications and heat. She is otherwise able to do
daily activities without difficulty. In general her left
knee is strong and stable, with only occasional giving way.
On examination there was mild crepitus with extension, but no
evidence of swelling or effusion. There was negative drawer
sign and McMurray and no pain with varus/valgus stress.
There was no joint line or patellar tenderness with resisted
lifting or displacement. There was full active range of
motion with no evidence of fatigue on repetitive flexion and
extension. There was no evidence of Baker's cyst. X-rays
showed the bones and soft tissues had a normal appearance.
There was no evidence of deformity or inflammatory or
destructive changes.
On VA examination in August 2005, the veteran complained of
throbbing and aching following exercise and with prolonged
walking. She reported moderate pain with minimal activity,
lasting about an hour. She denied daily pain, but did report
flare-ups twice per year associated with the cold or
exercise. The left knee does not interfere with her job or
daily life. On examination left knee flexion was 0 to 140
degrees and stability was good with medial and lateral
stress. Lachmann's and McMurray's testing were both
negative. The veteran did have popping with flexion and the
kneecap was very mobile, but there was no pain. X-rays were
negative for significant abnormality.
Based on the preceding evidence, the criteria for a
compensable rating have not been met. Throughout the appeal,
the veteran's primary complaint of pain has essentially
remained unchanged, and is clearly addressed in the VA
examination reports. However, the record reveals very little
clinical data to support a finding of more than minimal
symptomatology associated with her left knee chondromalacia.
Although the evidence shows mild crepitus, the veteran's left
knee disability does not produce a level of limited motion,
which would allow for the assignment of even a noncompensable
rating (flexion limited to 60 degrees and/or extension
limited to 5 degrees) under DCs 5260 and 5261. There is no
objective evidence of significant active pathology or
abnormality, including instability or subluxation.
Moreover, there is no credible evidence of pain on use or
flare-ups that result in additional limitation of motion to
the extent that the left knee would be compensably disabling
under the limitation-of-motion codes. 38 C.F.R. §§ 4.40,
4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Given
that the veteran's complaints of pain do not prevent her from
achieving normal measured range of motion they do not support
a finding of additional functional loss for a compensable
rating. Although the Board is required to consider the
effect of the veteran's pain when making a rating
determination, and has done so in this case, the Rating
Schedule does not require a separate rating for pain.
Spurgeon v. Brown, 10 Vet. App. 194 (1997).
In addition, while the veteran has documented left knee pain
with activity, the medical evidence does not include an X-ray
finding of degenerative arthritis that would permit the Board
to assign a compensable rating for arthritis and limitation
of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488
(1991), (a painful motion of a major joint caused by
degenerative arthritis, where the arthritis is established by
X-ray, is deemed to be limited motion and entitled to a
minimum 10 percent rating, even if there is no actual
limitation of motion noted clinically). Thus, the Board
concludes that the preponderance of the evidence is against
assignment of a compensable rating for the veteran's left
knee chondromalacia.
The only other possibilities for a higher disability
evaluation based on limitation of motion of the knee would be
under DC 5256, reflective of ankylosis; for instability under
DC 5257; for dislocation of the semilunar cartilage, under DC
5258; or under DC 5262, for nonunion of the tibia and fibula;
or genu recurvatum under DC 5263, none of which is present in
this case.
A preponderance of the evidence is against the claim, and
there is no reasonable doubt to be resolved. 38 U.S.C.A.
§ 5107(b).
4. chronic low back pain
Currently, the veteran's chronic low back pain is rated as
noncompensably disabling under DC 5237, for lumbosacral
strain.
Under DC 5237 a 10 percent evaluation is appropriate where
there is forward flexion of the thoracolumbar spine greater
than 60 degrees but not greater than 85 degrees; or, combined
range of motion of the thoracolumbar spine greater than 120
degrees but not greater than 235 degrees; or muscle spasm,
guarding, or localized tenderness not resulting in abnormal
gait or abnormal spinal contour; or, vertebral body fracture
with loss of 50 percent or more of the height. A 20 percent
evaluation is appropriate where there is forward flexion of
the thoracolumbar spine greater than 30 degrees but not
greater than 60 degrees; or, the combined range of motion of
the thoracolumbar spine is not greater than 120 degrees; or,
muscle spasm or guarding severe enough to result in an
abnormal gait or abnormal spinal contour such as scoliosis,
reversed lordosis, or abnormal kyphosis. A 40 percent
evaluation for forward flexion of the thoracolumbar spine of
30 degrees or less or favorable ankylosis of the entire
thoracolumbar spine. A 50 percent evaluation is warranted
for unfavorable ankylosis of the entire thoracolumbar spine.
A 100 percent evaluation is warranted for unfavorable
ankylosis of the entire spine. 38 C.F.R. § 4.71a, (2007).
Any associated objective neurologic abnormalities, including,
but not limited to, bowel or bladder impairment, should be
evaluated separately, under the appropriate diagnostic code.
See Note 1, General Rating Formula for Disease and Injuries
of the Spine, 38 C.F.R. § 4.71a, (2007).
Normal forward flexion of the thoracolumbar segment of the
spine is zero to 90 degrees, extension is zero to 30 degrees,
left and right lateral flexion are zero to 30 degrees, and
left and right rotation are zero to 30 degrees. The combined
range of motion refers to the sum of the range of forward
flexion, extension, left and right lateral flexion, and left
and right rotation. The normal combined range of motion of
the thoracolumbar spine is 240 degrees. See Note 2, General
Rating Formula for Disease and Injuries of the Spine, 38
C.F.R. § 4.71a, Plate V (2007).
On VA examination in October 2003, the veteran gave a history
of low back pain in the early 1990s, treated with
manipulation. There were no further problems unless she
attempted to pick up more than 50 pounds, which rarely
happened. Over the past 5 years her low backaches have been
associated with her menstrual cycle. There were no signs of
degenerative joint disease on examination or X-ray and no
radiculopathy. Straight leg raising was negative and there
was no spinal or paraspinal muscle tenderness. She had full
active flexion to 110 degrees, active extension to 50 degrees
and lateral flexion to 45 degrees, bilaterally and full
rotation bilaterally, all without pain.
On subsequent VA examination in August 2005, the veteran's
complaint of chronic low back pain associated with menses
remain unchanged. On examination flexion was to 90 degrees,
extension to 30 degrees, rotation to 30 degrees and lateral
bending to 30 degrees. Neurological examination was grossly
normal.
The Board finds that the current clinical findings do not
satisfy the criteria for a compensable evaluation. The VA
examinations discussed above, consistently show only slight
subjective symptoms with no restrictions as a result of her
low back complaints. The clinical findings do not indicate
forward flexion of the thoracolumbar spine greater than 60
degrees but not greater than 85 degrees, or a combined range
of motion not greater than 120 degrees, or severe muscle
spasm or guarding resulting in abnormal gait, scoliosis,
reversed lordosis, or abnormal kyphosis. The veteran does
not experience pain on motion and is not additionally limited
by pain, fatigue, weakness, or lack of endurance following
repetitive movement.
In this case, there is no credible evidence of pain on use or
flare-ups that result in limitation of motion to the extent
that the lumbar spine would be compensably disabling.
38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App.
202 (1995). Given that the veteran's complaints do not
prevent her from achieving normal measured range of motion
they do not support a finding of additional functional loss
for a compensable rating. Although the Board is required to
consider the effect of the veteran's pain when making a
rating determination, and has done so in this case, the
Rating Schedule does not require a separate rating for pain.
Spurgeon v. Brown, 10 Vet. App. 194 (1997).
The Board has also considered whether an increased evaluation
is in order in this case when separately evaluating and
combining the orthopedic and neurologic manifestations of the
veteran's lumbar spine disability. However as noted
previously, the veteran's normal range of motion does not
satisfy the criteria for even a 10 percent rating. In
addition, as there is no clinical or diagnostic evidence of
any neurological findings, there is no basis to assign a
separate rating under any of the applicable neurological
rating codes. Thus, consideration of separately evaluating
and combining the neurologic and orthopedic manifestations of
the veteran's low back pain would not result in a compensable
rating.
The Board has also considered evaluation of the veteran's
back disability under all other potentially appropriate
diagnostic codes to determine whether a compensable
evaluation can be assigned. However, the objective and
competent medical evidence of record is negative for any
findings indicating any involvement of the discs of the
lumbar segment of the spine in incapacitating episodes.
Therefore, a disability evaluation under DC 5243 would not
yield a higher rating. See 38 C.F.R. § 4.71a.
A preponderance of the evidence is against the claim, and
there is no reasonable doubt to be resolved. 38 U.S.C.A.
§ 5107(b) (West 2002).
5. acne
Currently, the veteran's acne is rated as noncompensably
disabling under DC 7828.
Under DC 7828 superficial acne (comedones, papules, pustules,
superficial cysts) of any extent warrants a noncompensable
rating; deep acne (deep inflamed nodules and pus- filled
cysts) affecting less than 40 percent of the face and neck,
or deep acne other than on the face and neck warrants a 10
percent rating; and deep acne affecting 40 percent or more of
the face and neck warrants a 30 percent rating. 38 C.F.R.
§ 4.118 (2007). Acne may also be rated as disfigurement of
the head, face, or neck under revised DC 7800 or scars (DCs
7801, 7802, 7803, 7804, or 7805), depending upon the
predominant disability. Id.
On VA examination in October 2003, the veteran gave a history
of adult acne at age 31, which was treated with Retin-A,
erythromycin and topical gel. She had no further problems
until 1999, and was again treated with Retin-A with relief.
The have been no recurrences. The veteran's history was also
significant for keloids in 1988 due to ear piercing. She was
treated with steroid injections with complete relief. She
also had history of keratofolliculitis at the back of her
neck after cutting her hair short, which was treated monthly
between 1994 and 2003 with steroid injections and eventually
cryotherapy. The treatment was eventually successful with
last bumps gone in May 2003. Examination of the skin
revealed small keloids on the right forearm and hand with
minimal elevation and on the low back consistent with chicken
pox scarring. Her ears were currently pierced with no
evidence of keloids. The nape, neck, and skull were also
without keloids. There was no current acne and no evidence
of acne scarring.
On VA examination in August 2005, clinical findings remained
essentially the same since the last examination in 2003. The
veteran reported no outbreaks over the last five years.
Photographs taken at the time of the examination showed clear
skin with no current evidence of acne or keloid formation.
In this case the VA examinations note the relevant medical
history of the veteran's skin disorders, but do not provide
current clinical findings indicative of increased impairment
as she is essentially asymptomatic. The veteran's acne is no
longer active. She has no keloid formation and she does not
have deep inflamed nodules and pus-filled cysts affecting
less than 40 percent of the face and neck, or deep acne other
than on the face and neck. The foregoing evidence, overall,
fails to show that the veteran's skin disorder satisfies the
criteria for a compensable evaluation.
The veteran's acne does not warrant a compensable initial
evaluation under any alternative diagnostic codes either.
Her skin, as depicted in the photographs and the VA
examiners' description, cannot be reasonably construed as
even slightly disfiguring scars under DC 7800. Also as there
is no evidence of deep, unstable or painful scars, limitation
of motion due to scars, or scars covering an area of 144
square inches. Thus, diagnostic codes for rating these
manifestations are not for application. See 38 C.F.R. §
4.118 DC 7801, 7802, 7803, 7804, 7805 (2007).
A preponderance of the evidence is against the claim, and
there is no reasonable doubt to be resolved. 38 U.S.C.A.
§ 5107(b) (West 2002).
Extra-schedular Consideration & Conclusion
Finally, there is no indication that the schedular criteria
are inadequate to evaluate the veteran's service-connected
disabilities. The evidence does not establish that any of
the disabilities cause marked interference with employment
(i.e., beyond that contemplated in the assigned evaluation).
Moreover, it does not establish that the veteran's service-
connected disabilities necessitate frequent periods of
hospitalization. In light of the foregoing, the veteran's
claims do not present such an exceptional or unusual
disability picture as to render impractical the application
of the regular schedular standards. Therefore, the Board is
not required to remand this matter to the RO for the
procedural actions outlined in 38 C.F.R. § 3.321(b)(1)
(2006). See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996);
Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown,
8 Vet. App. 218, 227 (1995).
The Board has also reviewed the claims for increased ratings
mindful of the guidance of Fenderson, supra. The RO has
noted consideration of all pertinent evidence, and has
assigned the current disability ratings for asthma,
sinusitis, left knee chondromalacia, chronic low back pain,
and acne effective from the date of the initial grant of
service connection. The Board on review concurs with those
ratings. The rationale set forth above, in determining that
higher ratings are not warranted, is the same as that used to
determine that higher "staged" ratings are not warranted.
Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim, (2) that VA will seek to provide,
and (3) that the claimant is expected to provide; and (4)
must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). The Court has held that VCAA notice
should be provided to a claimant before the initial RO
decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112
(2004). However, if VCAA notice is provided after the
initial decision, such a timing error can be cured by
subsequent readjudication of the claim, as in a Statement of
the Case (SOC) or Supplemental SOC (SSOC). Mayfield v.
Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as a SOC or supplemental SOC (SSOC), is
sufficient to cure a timing defect).
The U.S. Court of Appeals for the Federal Circuit has held
that any error in a VCAA notice should be presumed
prejudicial. The claimant bears the burden of demonstrating
such error. VA then bears the burden of rebutting the
presumption, by showing that the essential fairness of the
adjudication has not been affected because, for example,
actual knowledge by the claimant cured the notice defect, a
reasonable person would have understood what was needed, or
the benefits sought cannot be granted as a matter of law.
Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007).
More recently, the U.S. Court of Appeals for Veterans Claims
concluded that, for an increased rating claim, VCAA notice
should include notice that evidence of increased severity of
the disorder or of greater interference with work or
activities of daily life is required to support a claim for
increased evaluation; that it include at least general notice
of more particularized bases of granting increased
evaluations where, as here, particular criteria beyond mere
increase in severity may be required for assignment of a
higher disability rating; that it include notice that a
particular rating will be assigned by applying diagnostic
codes; and that it include notice, in the form of examples,
of the kinds of evidence required to support the increased
rating claim. Vazquez-Flores v. Peake, 487 F.3d 881, 889
(Fed. Cir. 2007).
In an August 2003 letter, issued prior to the appealed March
2004 RO adjudication, the RO informed the veteran of its duty
to assist her in substantiating her claims under the VCAA,
and the effect of this duty upon her claims. Following the
grant of service connection, the veteran disagreed with the
evaluations assigned.
While the veteran was clearly not provided this more detailed
notice in the August 2003 letter, the Board finds that the
veteran is not prejudiced by this omission in the
adjudication of her increased rating claims. Following the
grant of service connection, an SOC was issued, which
contained a list of all evidence considered, a summary of
adjudicative actions, included all pertinent laws and
regulation, including the criteria for evaluation of the
veteran's disabilities, and an explanation for the decision
reached. In addition, it appears that all obtainable
evidence identified by the veteran relative to her claims has
been obtained and associated with the claims file, and that
she has not identified any other pertinent evidence, not
already of record, which would need to be obtained for a fair
disposition of this appeal. Thus, the purposes of the notice
requirements have not been frustrated and any error in
failing to provide additional notice has not affected the
essential fairness of the adjudication process because the
veteran had actual knowledge of what information and evidence
is needed to establish her claims. See Sanders supra. In
April 2006, the veteran checked that she had no additional
evidence or information to submit, and requested that her
claim be decided as soon as possible.
In addition, to whatever extent the decision of the Court in
Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more
extensive notice in claims for compensation, e.g., as to
potential downstream issues such as disability rating and
effective date, the Board finds no prejudice to the veteran
in proceeding with the present decision. Since the claims
herein are being denied, such matters are moot.
In light of the foregoing, the Board is satisfied that all
relevant facts have been adequately developed to the extent
possible; no further assistance to the veteran in developing
the facts pertinent to the issues on appeal is required to
comply with the duties to notify and assist. 38 U.S.C.A. §§
5103 and 5103A; 38 C.F.R. § 3.159.
ORDER
An initial evaluation in excess of 30 percent for asthma is
denied.
An initial compensable evaluation for sinusitis is denied.
An initial compensable evaluation for chondromalacia of the
left knee is denied.
An initial compensable evaluation for chronic low back pain
is denied.
An initial compensable evaluation for acne with keloidal
papules on scalp, earlobes and face, is denied.
REMAND
The veteran's uterine fibroids are currently rated as
noncompensably disabling under DC 7613, which pertains to
disease, injury, or adhesions of the uterus. Under the
General Rating Formula, symptoms that require continuous
treatment warrant a 10 percent rating. Symptoms that are not
controlled by continuous treatment warrant a maximum 30
percent rating. 38 C.F.R. § 4.116 (2007).
The evidence of record dated between 2003 and 2005 show the
veteran's complaints of moderate dysmenorrhea were treated
with over-the-counter medications and later contraceptive
therapy with reasonable success. However she later began
experiencing progressive symptoms. In July 2005, the veteran
underwent uterine artery embolization (UAE).
The Board notes that the most recent VA gynecologic
examination was conducted in August 2005. Although the
examination report does not on its face appear to reflect any
inadequacies in the evaluation of the veteran's service-
connected uterine fibroids, it was conducted only one month
after the UAE procedure. Moreover since at the time of the
examination the veteran's menstrual cycle was late, there is
no clear assessment of the actual severity of the condition,
including whether any residual symptoms could be controlled
by treatment and/or whether continuous treatment was required
(criteria that is essential to rate the service-connected
disability under DC 7613).
The Board believes that in fairness to the veteran,
additional development is in order to afford her a new
medical examination, particularly, given the passage of time
since her last VA examination, and the need for more current
findings. See e.g. Allday v. Brown, 7 Vet. App. 517, 526
(1995) [where record does not adequately reveal current state
of claimant's disability, fulfillment of duty to assist
requires contemporaneous medical examination, particularly if
there is no additional medical evidence which adequately
addresses the level of impairment since previous
examination]. Further no records of gynecologic treatment
following that procedure appear in the claims file.
The examination should include a review of the veteran's
claims file and past clinical history, with particular
attention to the severity of present symptomatology, as well
as any pertinent medical history since her UAE in 2005. Any
additional relevant records of VA or private treatment that
are not currently of record should be obtained and associated
with the claims file.
Accordingly, the case is REMANDED for the following action:
1. Ask the veteran to provide any
medical records, not already in the
claims file, pertaining to treatment or
evaluation of her uterine fibroids since
2005, or to provide the identifying
information and any necessary
authorization to enable the AMC/RO to
obtain such evidence on her behalf.
Document any attempts to obtain such
records. If the AMC/RO is unable to
obtain any pertinent evidence identified
by the veteran, so inform her and request
that she obtain and submit it.
2. Then, afford the veteran a
gynecological VA examination. In
conjunction with the examination, the
claims folder must be made available to
the physician for review of the case. A
notation to the effect that this record
review took place should be included in
the report. The physician should elicit
from the veteran a detailed history
regarding the onset and progression of
relevant symptoms. All indicated tests
and studies should be performed, and the
physician should review the results of
any testing prior to completing the
report.
The examining physician must list any
present manifestations of the uterine
fibroids and, if any present symptoms are
found, to address whether or not they
require continuous treatment. The
opinions provided should be based on the
results of examination and a review of
the medical evidence of record. All
examination findings, along with the
complete rationale for all opinions
expressed, should be set forth in the
examination report.
3. After completing the requested action,
and any additional notification and/or
development deemed warranted,
readjudicate the claim by evaluating all
evidence obtained after the last
statement or supplemental statement of
the case (SSOC) was issued. If the
benefits sought on appeal remain denied,
furnish the veteran and her
representative an appropriate SSOC
containing notice of all relevant actions
taken on the claims, to include a summary
of the evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal, including VCAA
and any other legal precedent.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
______________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs